BREAKING: ABC is reporting that Clement is not Bush’s pick. More as it comes.
Erick Erickson believes that Edith Brown Clement will be Bush’s first Supreme Court nominee, replacing Justice Sandra Day O’Connor.
RedState has more background on Judge Clement and her positions on the issues. She seems to be sufficiently conservative to keep the base happy, but doesn’t have the sort of record that makes it easy for the radical left to tag her with the title of “extremist” and the like. Clement appears to be exactly what a Supreme Court nominee needs to be in this hyperpoliticized age: a relatively inoffensive cipher.
Judge Clement has stated that the “right to privacy” in the Constitution is a matter of “settled law” – but only so far as the Supreme Court goes. Does that mean that she would be more or less likely to overturn Roe? The fact that her position allows for some weasel room on either side means that she stands a better chance of passing through the confirmation project than someone who’s taken a firm stand one way or the other. To both the left and the right, Roe v. Wade is a lightning rod – to the left, it might as well be their One Commandment, a document handed down from On High and to be defended with every method. To the right, Roe is an abomination, a legalized sanction of the murder of thousands of innocents.
Roe may be horrendous law that rests upon the idiotic concept of “emanations” from a “penumbra” that creates some vague “right” to privacy, but it’s nowhere near as important as either side makes it out to be. Absent Roe, abortion would almost certainly be legal in many states. Certainly a state like California isn’t going to outlaw abortion anytime soon. Roe should be discarded not because of any concern over the balance between “life” and “choice” as a set of conflicting values, but because it’s a crappy piece of jurisprudence that’s only inflamed the abortion debate.
However, the chances of the logical and federalist choice of remanding this issue to the voters of each state being acceptable to either side is roughly nil. The abortion debate has become too inflamed with both sides too entrenched for their to be much chance of a reasonable compromise. Judge Clement seems to be a relatively staunch conservative on important matters such as property rights, the Commerce Clause, and other economic issues, but no Supreme Court pick will dare touch Roe. To do so would be too politically risky and guarantee sending one side or another into apoplexy. Until there’s a decisive shift one way or another on these issues, any Supreme Court nominee will continue walking the legal tightrope on this issue.
UPDATE: A Tale Of Two Ediths?
Now there are some interesting indications that Judge Clement isn’t the nominee – that another Edith, Judge Edith H. Jones is the nominee. Is this some kind of bizarre political jujitsu or just noise on the wires? Find out tonight at 8PM Central when President Bush announces his pick to replace Justice O’Connor.
UPDATE: More on Clement
The Supreme Court Nomination Blog has done an excellent service by providing case summaries of some of Judge Clement’s prior decisions on the 5th Circuit.
